Hezebicks v. Hezebicks

• Court: Ohio Court of Appeals
• Decided: June 29, 2026
• Docket: 2025-A-0074
• Status: Published

Opinion

[Cite as Hezebicks v. Hezebicks, 2026-Ohio-2463.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

NIKA K. HEZEBICKS, CASE NO. 2025-A-0074

Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas

SAMUEL L. HEZEBICKS, Trial Court No. 2024 DR 00424 Defendant-Appellee.

OPINION AND JUDGMENT ENTRY

Decided: June 29, 2026 Judgment: Reversed and remanded

Philip E. Cordova and Joseph J. Loftus, Andrews & Pontius, L.L.C., 4810 State Road, P.O. Box 10, Ashtabula, OH 44005 (For Plaintiff-Appellant).

Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047 (For Defendant-Appellee).

JOHN J. EKLUND, J.

{¶1} Appellant, Nika K. Hezebicks, appeals the judgment of the Ashtabula

County Court of Common Pleas overruling the magistrate’s decision that recommended

permitting Appellant to relocate to South Carolina with the parties’ two minor children.

{¶2} Appellant raises a single assignment of error, arguing that the trial court

abused its discretion in overruling the magistrate’s decision. According to Appellant, the

trial court erroneously concluded that the factors in R.C. 3109.051(D)(1) through (16)

weighed against her requested relocation. {¶3} Having reviewed the record and the applicable law, we sustain Appellant’s

assignment of error. The trial court misapplied R.C. 3109.051(G)(1) by determining

whether Appellant’s relocation was in the child’s best interest instead of whether it was in

the children’s best interest to revise the parenting time schedule of Appellee, Samuel L.

Hezebicks (“Mr. Hezebicks”). The trial court also misapplied R.C. 3109.051(D) in

considering the factors set forth therein to determine whether to permit Appellant’s

relocation with the children instead of for the purpose of establishing Mr. Hezebicks’

revised parenting time schedule.

{¶4} Therefore, we reverse the judgment of the Ashtabula County Court of

Common Pleas and remand for further proceedings.

Substantive and Procedural History

{¶5} Appellant and Mr. Hezebicks were married in Ohio in 2011 and are parents

of two minor children born in 2019 and 2021.

{¶6} On September 25, 2024, Appellant filed a complaint for divorce in the

Ashtabula County Court of Common Pleas. Appellant also filed a motion for temporary

orders with respect to residential parenting rights (custody), child support, and payment

of debts/expenses. Among other things, Appellant requested to be named the children’s

temporary residential parent and legal custodian and that Mr. Hezebicks be ordered to

pay child support.

{¶7} On November 13, 2024, Mr. Hezebicks filed an answer and counterclaim.

Mr. Hezebicks also filed a motion for temporary orders, including for visitation. He further

filed a motion for restraining order requesting that Appellant be enjoined from removing

the children from the State of Ohio without his prior written consent or court order.

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Case No. 2025-A-0074 {¶8} On November 20, 2024, the magistrate filed temporary orders on the issues

of child support and debts/expenses. The magistrate also filed an order (miscaptioned

as a “judgment entry”) enjoining Appellant from relocating without Mr. Hezebicks’ prior

written consent or court order.

{¶9} On July 1, 2025, Mr. Hezebicks filed a motion for shared parenting,

requesting that the trial court adopt the shared parenting plan attached thereto.

{¶10} On July 10, 2025, Appellant filed a “motion for permission to relocate; notice

of intent to relocate” (“motion/notice”). Therein, Appellant sought permission from the trial

court to relocate with the children to South Carolina and formally notified Mr. Hezebicks

of her intent to do so. The trial court scheduled a motion hearing for September 2025,

which was subsequently advanced to July 25, 2025.

{¶11} On July 25, 2025, the magistrate held a final divorce hearing. Following the

hearing, the magistrate filed a decision recommending that the parties be granted a

divorce. The magistrate rescheduled the hearing on Appellant’s motion/notice for August

11, 2025.

{¶12} On August 11, 2025, the magistrate held a hearing on Appellant’s

motion/notice. Appellant presented testimony from herself and her mother. Mr.

Hezebicks presented his own testimony.

{¶13} On August 13, 2025, the trial court filed the final divorce decree. The decree

approved the parties’ agreement regarding the division of property, allocation of parental

rights, child support, and other issues. The decree named Appellant as the children’s

residential parent and legal custodian and the residential parent for school purposes,

subject to Mr. Hezebicks’ parenting time schedule expressly set forth therein. The decree

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Case No. 2025-A-0074 also expressly incorporated and attached a standard parenting order with handwritten

modifications (Exhibit A) and “mandatory notices” (Exhibit B). One such “mandatory

notice” was a “relocation notice” stating:

Pursuant to ORC 3109.051(G), the parties hereby are notified, as follows:

If the residential parent intends to move to a residence other than the residence specified herein, said residential parent shall file a notice of intent to relocate with this Court. Except as provided in ORC 3109.051(G)(2), (3), and (4), a copy of such notice shall be mailed by the court to both parties. On receipt of the notice, the Court, on its own motion or the motion of either party, may schedule a hearing with notice to both parties to determine whether it is in the best interest of the child or children to revise the visitation or parenting schedule for the child or children.

{¶14} On August 18, 2025, the magistrate filed a decision granting Appellant’s

motion to relocate. The magistrate addressed the factors in R.C. 3109.051(D)(1) through

(16) and determined that they weighed in favor of granting the relocation. The magistrate

also set forth a revised parenting time schedule for Mr. Hezebicks.

{¶15} On August 21, 2025, Mr. Hezebicks filed objections to, and a motion to stay,

the magistrate’s decision.

{¶16} On October 16, 2025, the trial court filed a scheduling entry and declined to

stay the magistrate’s decision.

{¶17} On November 4, 2025, Mr. Hezebicks filed the transcript of the August 11,

2025 motion hearing.

{¶18} On November 13, 2025, Mr. Hezebicks filed supplemental objections to the

magistrate’s decision.

{¶19} On November 19, 2025, Appellant filed a reply to Mr. Hezebicks’ objections.

{¶20} On December 11, 2025, the trial court held a hearing on Mr. Hezebicks’

objections.

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Case No. 2025-A-0074 {¶21} On December 12, 2025, the trial court filed a judgment entry overruling the

magistrate’s decision. The trial court independently addressed the factors in R.C.

3109.051(D)(1) through (16) and determined that they weighed against granting

relocation. The trial court ordered Appellant to return the children to Ashtabula County

before December 22, 2025, so they may be enrolled in school.

{¶22} On December 19, 2025, Appellant filed a motion to stay execution of the

trial court’s judgment. On the same date, the trial court denied Appellant’s motion to

stay.

{¶23} On December 23, 2025, Appellant timely appealed the trial court’s

December 12, 2025 judgment. On the same date, Appellant requested a stay of the trial

court’s judgment pending appeal in this Court.

{¶24} On January 28, 2026, this Court granted Appellant’s motion “to the extent

that [she] is not immediately required to return the children to Ashtabula County.”

However, we stated that “any previous orders regarding parenting time, that do not disrupt

the children’s school schedule, shall remain in effect.”

Standard of Review

{¶25} Appellant raises the following sole assignment of error: “The trial court

abused its discretion in overruling the August 18, 2025, Magistrate’s Decision as the court

erroneously concluded that the factors enumerated in R.C. § 3109.051 weighed against

Appellant’s requested relocation.”

{¶26} The trial court’s judgment regarding whether to adopt, reject, or modify a

magistrate’s decision is reviewed for abuse of discretion. Coliadis v. Holko Enercon, Inc.,

2016-Ohio-8522, ¶ 18 (11th Dist.). An abuse of discretion is the trial court’s “‘failure to

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Case No. 2025-A-0074 exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010-Ohio-

1900, ¶ 62, quoting Black’s Law Dictionary (8th Ed. 2004). “[A]n abuse of discretion may

be found when the trial court ‘applies the wrong legal standard, misapplies the correct

legal standard, or relies on clearly erroneous findings of fact.’” Carson v. Holmes, 2010-

Ohio-4199, ¶ 23 (11th Dist.), quoting Thomas v. Cleveland, 2008-Ohio-1720, ¶ 15 (8th

Dist.).

Legal Requirements

{¶27} The issue before us is whether the trial court abused its discretion in

overruling the magistrate’s decision and precluding Appellant’s relocation with the parties’

children to South Carolina.

{¶28} As stated, on August 13, 2025, the trial court filed the final divorce decree

naming Appellant as the children’s residential parent, subject to Mr. Hezebicks’ parenting

time schedule expressly set forth therein and the standard parenting order attached

thereto. The Supreme Court of Ohio has explained that “‘[v]isitation’ and ‘custody’ are

related but distinct legal concepts.” In re Gibson, 61 Ohio St.3d 168, 171 (1991).

“‘Custody’ resides in the party or parties who,” like Appellant, “have the right to ultimate

legal and physical control of a child.” Id. R.C. 3109.04 governs agreements “allocating

parental rights and responsibilities,” also known as “the right to ultimate legal and physical

control of a child.” Id. By contrast, “[v]isitation’ resides in a noncustodial party and

encompasses that party’s right to visit the child.” Id. “In other words, ‘visitation’ is granted

to someone who,” like Mr. Hezebicks, “does not have ‘custody.’”

{¶29} R.C. 3109.051(G)(1) governs the relocation of a residential parent. Holz v.

Holz, 2001 WL 1453900, *2 (11th Dist. Nov. 16, 2001). It provides in relevant part:

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Case No. 2025-A-0074 If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. . . . Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child.

(Emphasis added.)

{¶30} Thus, “[p]ursuant to the express terms of the statute, the trial court may

schedule a hearing ‘to determine whether it is in the best interest of the child to revise the

[parenting time] schedule for the child.’” (Emphasis added.) Kassavei v. Hosseinipour,

2001 WL 589392, *1 (11th Dist. June 2, 2001), quoting R.C. 3109.051(G)(1). “However,

the relocation statute contains no provision granting the trial court the authority to deny

the relocation.” (Emphasis added.) Id.; see In re Noble, 2001 WL 314889, *1 (11th Dist.

Mar. 30, 2001) (“The rule in Ohio is that R.C. 3109.051(G)(1) does not give the trial court

the authority to prevent the residential parent from relocating with the child.”); Moore v.

Moore, 1998 WL 156983, *4 (11th Dist. Mar. 27, 1998). Ohio courts have held that “a

parent has a constitutional right to live anywhere in the country that he or she chooses

and to relocate at his or her will.” Williams v. Mabra, 2006-Ohio-5845, ¶ 14 (12th Dist.);

Quint v. Lomakoski, 2005-Ohio-4603, ¶ 19 (2d Dist.).

{¶31} “Modification of visitation rights is governed by R.C. 3109.051.” Braatz v.

Braatz, 1999-Ohio-203, paragraph one of the syllabus. R.C. 3109.051(C) provides in

relevant part that “when establishing a specific parenting time . . . schedule, . . . the court

. . . shall consider all other relevant factors, including, but not limited to, all of the factors

listed in division (D) of this section” and “may interview in chambers any or all involved

children regarding their wishes and concerns.” “Pursuant to R.C. 3109.051(D), the trial

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Case No. 2025-A-0074 court shall consider the [six]teen factors enumerated therein, and in its sound discretion

shall determine visitation that is in the best interest of the child.” Braatz at paragraph two

of the syllabus; see R.C. 3109.051(D)(1)-(16).

Analysis

{¶32} The parties’ arguments focus on whether the trial court properly applied the

factors in R.C. 3109.051(D)(1) through (16). However, we find two predicate legal errors

that require reversal—the trial court’s misapplication of R.C. 3019.051(G)(1) and (D).

{¶33} In its judgment entry, the trial court quoted R.C. 3109.051(G)(1) and

expressly considered each of the factors in R.C. 3109.051(D)(1) through (16). However,

instead of determining pursuant to R.C. 3109.051(G)(1) whether it was in the children’s

best interest to revise Mr. Hezebicks’ parenting time schedule, the trial court’s stated

purpose was to determine if permitting Appellant’s relocation was in the children’s best

interest. Further, instead of considering the factors in R.C. 3109.051(D)(1) through (16)

to establish Mr. Hezebicks’ revised parenting time schedule, the trial court considered the

factors in determining whether to preclude Appellant’s relocation with the children. The

trial court’s actions constitute a misapplication of law and, thus, an abuse of discretion.

{¶34} There are situations in which a court determines whether a parent’s

relocation is in a child’s best interest. See, e.g., Rozborski v. Rozborski, 116 Ohio App.3d

29, 31 (8th Dist. 1996). However, those cases are distinguishable and do not involve

R.C. 3109.051. As this Court has explained, “[w]here the decree contains an express or

implied provision restricting the custodial parent’s ability to move from the area, the child

can only be moved from the state upon a finding that the relocation would be in the best

interests of the child.” Salisbury v. Salisbury, 2006-Ohio-3543, ¶ 93 (11th Dist.); see, e.g.,

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Case No. 2025-A-0074 Williams v. Williams, 2004-Ohio-3992, ¶ 18 (11th Dist.) (parent’s “motion did not fall within

the purview of R.C. 3109.051(G)” where the court precluded removal of child without court

approval); Victor v. Miller, 2002-Ohio-1956, ¶ 10 (11th Dist.) (same).

{¶35} We acknowledge that on November 20, 2024, the magistrate filed a

restraining order enjoining Appellant from relocating without Mr. Hezebicks’ prior written

consent or court order. However, on August 13, 2025, the trial court filed the final decree.

This Court has held that “unless a temporary order is reduced to a separate judgment or

specifically referred to in the final decree, all temporary orders merge into the final decree

of divorce and become moot.’” Salyers v. Salyers, 2025-Ohio-1605, ¶ 84 (11th Dist.),

quoting Salpietro v. Salpietro, 2023-Ohio-169, ¶ 23 (6th Dist.). The magistrate’s

November 2024 restraining order was not reduced to a separate judgment, nor does the

decree refer to it. Further, nothing in the final decree or its exhibits precludes Appellant’s

relocation from Ohio with the children. In fact, the standard relocation-notice attached to

the final decree expressly acknowledges potential relocation.

Conclusion

{¶36} The trial court abused its discretion by misapplying R.C. 3109.051(G) and

(D). Appellant’s sole assignment of error is sustained, and the trial court’s judgment is

reversed. On remand, the trial court shall determine, in accordance with R.C.

3109.51(G)(1), whether it is in the children’s best interest to revise Mr. Hezebicks’

parenting time schedule. If so, then the trial court shall also consider the factors in

3109.51(D)(1) through (16), in accordance with R.C. 3109.51(C) and (D), and establish

Appellant’s revised parenting-time schedule.

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Case No. 2025-A-0074 {¶37} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is reversed, and this matter is remanded for proceedings consistent with

this Opinion.

ROBERT J. PATTON, J.,

SCOTT LYNCH, J.,

concur.

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Case No. 2025-A-0074 JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, it is the judgment and order of

this Court that the judgment of the Ashtabula County Court of Common Pleas is reversed,

and that this matter is remanded for further proceedings consistent with this Opinion.

Costs to be taxed against Appellee.

JUDGE JOHN J. EKLUND

JUDGE ROBERT J. PATTON, concurs

JUDGE SCOTT LYNCH, concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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Case No. 2025-A-0074